Citation Nr: 1522080
Decision Date: 05/22/15 Archive Date: 06/01/15
DOCKET NO. 09-45 589 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa
THE ISSUES
1. Entitlement to an initial rating in excess of 30 percent for service-connected headaches due to brain concussion prior to August 16, 2011.
2. Entitlement to total disability based on individual unemployability (TDIU).
REPRESENTATION
Veteran represented by: Robert Chisholm, Attorney at Law
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
A. MacDonald, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1949 to January 1952.
This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa.
This issue has been before the Board on numerous occasions. In relevant part, in a December 2004 decision the Board reopened the claim for entitlement to service connection for headaches, and in an October 2006 decision granted entitlement to service connection for headaches. In an April 2007 rating decision, the RO assigned an initial 10 percent disability rating for headaches due to brain concussion effective April 10, 2001. In September 2007, the Veteran filed a timely notice of disagreement with the assigned disability ratings.
In a July 2013 decision, the Board denied a rating in excess of 10 percent for headaches prior to August 16, 2011, but granted an increased rating not to exceed 30 percent for headaches effective August 16, 2011. The Veteran then timely appealed to the Court of Appeals for Veterans Claims (Court). In a January 2014 Joint Motion for Remand (JMR) the parties in relevant part agreed to vacate the Board's decision denying entitlement to a rating in excess of 10 percent prior to August 16, 2011, but did not disturb the finality of the Board decision denying a rating in excess of 30 percent effective August 16, 2011. Accordingly, only the period prior to August 16, 2011 remains on appeal before the Board.
In an April 2014 decision, in relevant part, the Board granted an initial rating not to exceed 30 percent for service-connected headaches prior to August 16, 2011. The Veteran then again timely appealed this decision to the Court. In an October 2014 JMR, the parties agreed to vacate the Board decision only to the extent related to entitlement to an initial rating in excess of 30 percent for service-connected headaches prior to August 16, 2011. Specifically, the parties found additional reasons and basis were required regarding the Veteran's lay statements concerning the frequency and severity of his headaches.
In March 2015, the Veteran and his representative submitted additional evidence that has not yet been considered by the agency of original jurisdiction (AOJ). However, the Veteran and his representative also submitted a written statement waiving initial AOJ consideration of the additional evidence submitted. See 38 C.F.R. 20.1304(c). Accordingly, the Board finds appellate consideration may proceed without any prejudice to the Veteran.
This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014).
The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDING OF FACT
Prior to August 16, 2011, the service-connected headaches due to brain concussion manifested characteristic prostrating attacks occurring on an average once a month, but not productive of severe economic inadaptability.
CONCLUSION OF LAW
The criteria for an initial rating in excess of 30 percent for service-connected headaches due to brain concussion prior to August 16, 2011 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.21, 4.124 Diagnostic Codes 8046, 8100, 4.130, Diagnostic Code 9304 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
As discussed, the Veteran is seeking an increased initial rating for his service-connected headaches. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.
Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.
Throughout the period on appeal, the Veteran's service-connected headaches have been assigned a 30 percent rating under Diagnostic Code (DC) 8046-9304. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27.
DC 8046 provides that purely neurological disabilities such as hemiplegia, cranial nerve paralysis, etc., due to cerebral arteriosclerosis will be rated under the diagnostic codes dealing with such specific disabilities, with citation of a hyphenated diagnostic code. Purely subjective complaints such as headache, dizziness, tinnitus, insomnia and irritability recognized as symptomatic of a properly diagnosed cerebral arteriosclerosis, will be rated 10 percent and no more under DC 9305. This 10 percent rating will not be combined with any other rating for a disability due to cerebral arteriosclerosis. Ratings in excess of 10 percent for cerebral arteriosclerosis under Diagnostic Code 9305 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with cerebral arteriosclerosis. 38 C.F.R. § 4.124a.
DC 9304 provides an evaluation for dementia due to head trauma using the general rating formula for mental disorders. See 38 C.F.R. § 4.130.
While the RO noted in the April 2007 rating decision that there is no medical evidence to conclude the Veteran's headaches are migraine or vascular type, the Board finds that DC 8100 pertaining to migraine headaches is more applicable in this case based on review of the overall clinical disability picture. 38 C.F.R. § 4.124a. Under this provision, a 10 percent evaluation is assigned for migraines with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent evaluation, the highest available under Diagnostic Code 8100, is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id.
The rating criteria do not define "prostrating" as used in DC 8100. By way of reference, the Board notes that according to WEBSTER'S NEW COLLEGE DICTIONARY 909 (3d Ed. 2008), "prostrate" is defined as "physically or emotionally exhausted." "Incapacitated" is listed as a synonym. A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), in which "prostration" is defined as "extreme exhaustion or powerlessness."
After a full review of the record, the Board finds that prior to August 16, 2011, the service-connected residual headaches due to brain concussion more closely approximated a manifestation of prostrating attacks occurring on an average once a month, but not productive of severe economic inadaptability. As a result, the criteria under Diagnostic Code 8100 for an initial evaluation of 30 percent, but no higher, prior to August 16, 2011, has been met. See 38 C.F.R. § 4.124a.
At the onset, and in agreement with the terms of the JMR, the Board notes that as a lay person, the Veteran is competent to report symptoms such as the length, severity, and frequency of his headaches, as these symptoms require only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Board has considered the Veteran's lay statements regarding the length and severity of his headaches, and his statements will be addressed below.
During the course of this appeal, the Veteran underwent multiple VA examinations for miscellaneous neurological disorders. On VA examination in November 2004, the Veteran reported having daily headaches which began in the left posterior auricular area and would travel forward. He treated the pain with Aspirin. The examiner assessed the Veteran with post concussive headaches consistent with his head injury.
In a January 2008 written statement, the Veteran reported experiencing four or more headaches per week that he described as disabling and prostrating. He made similar statements during his September 2008 VA examination, reporting headaches four to five times per week which lasted for one to two hours, and were relieved with Aspirin. He described experiencing incapacitation due to headaches for approximately two hours, three times per week.
During his September 2008 VA examination, the examiner reviewed the Veteran's claims file, including his lay statements describing his headaches, as well as personally interviewed and examined the Veteran. Based on this complete review, the examiner opined the Veteran's lay statements did not describe migraines, but instead described muscle contraction headaches which occurred weekly. The examiner continued to opine that less of the Veteran's headache attacks were prostrating. The examiner also noted the Veteran was not employed and there were no effects of the diagnosis on usual daily activities or problems, except when he had a headache. In summary, after considering the Veteran's lay descriptions as well as his history of medical treatment, the examiner physician opined the Veteran's headaches were not migraines, and less than half of his described attacks were prostrating.
On VA examination in July 2009, the Veteran reported he "always" had headaches several times a week and episodes of prostrating headaches. He self-medicated by going to a dark quiet room two to four times per week and took many Aspirins daily. Upon clinical evaluation, the examiner noted that less than half of the attacks were prostrating, and duration of the headaches was hours. The Veteran was diagnosed with post-concussive headaches with rebound phenomenon. The examiner opined the effects on his usual occupational activities were decreased concentration and pain, and effects on his usual daily activities were mild on shopping and traveling and moderate for chores, exercise, sports, and recreation. The examiner concluded the Veteran has been gradually increasing the amount and frequency of Aspirin because the headaches became "more stubborn" and perhaps earlier in the day.
This July 2009 examiner also reviewed the claims file, including the Veteran's lay statements, as well as personally interviewed and examined the Veteran before she also opined less than half of the Veteran's reported headaches were prostrating.
Accordingly, both physician examiners, with extensive medical training and expertise, each considered the Veteran's lay statements describing the length and severity of his headaches and each determined those very lay statements reflected less than half of his attacks were prostrating. Because two separate trained medical professionals interpreted the information contained in the Veteran's competent lay statements in the same manner, the Board finds these two opinions of VA examiners provide highly probative evidence that less than half of the Veteran's reported headache attacks were prostrating. Thus, the Board resolves that prostrating attacks occur on an average of once a month.
During a subsequent VA examination in March 2011, the Veteran reported he experienced headaches most days of the week, lasting for two hours, and was incapacitated for most of the headaches for a two-hour period. Upon clinical evaluation, the Veteran was unable to visualize fundi without use of medication to dilate the eyes. Diagnosis listed neuralgia type headaches due to focal scalp laceration/nerve injury. With regards to the effects on his usual daily activities, the Veteran had to lay down most days for a couple of hours, but otherwise kept busy, fishing, mowing the laws, and cleaning the house and cars. The Veteran was retired due to eligibility by age or duration of work and was advised to discuss the headaches with his primary care physician.
Moreover, VA outpatient treatment records from March 2003, July 2003 to February 2005, January 2006 to September 2007, and October 2009 to December 2010 are silent as to any complaints and/or treatment for reoccurring headaches.
Finally, the Board has considered subsequent lay statements made by the Veteran in which he described prostrating attacks. For example, in a September 2012 written statement, the Veteran reported his migraines included light sensitivity and stated, "This makes them prostrating." However sensitivity to light is not the definition of prostrating headaches. Instead, as discussed above, prostrating is generally defined to mean incapacitating and draining. Therefore, although the Veteran is competent to describe that his headaches included light sensitivity, the Board finds his conclusion that sensitivity to light constitutes prostrating headaches is not probative.
Regardless, there is no persuasive evidence that the Veteran's prostrating attacks result in severe economic inadaptability, a criteria contemplated by the next-higher evaluation of 50 percent under 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Board has considered that in recent statements made for benefits purposes, the Veteran has asserted the requirement to rest to alleviate his headaches interfered with his work and forced him to retired. See e.g. December 2014 written statement. Additionally, in a February 2015 private vocational assessment, the vocational consultant opined the Veteran's headaches rendered him unable to participate in gainful employment since October 2003. However, the Veteran's recent statements and the recent vocational evaluation are not consistent with the contemporaneous medical evidence.
Instead, in the medical evidence from the years shortly after his cessation of work in 2003, the Veteran did not relate his lack of employment to his headaches. Instead, in a March 2003 private medical record the Veteran related he had retired from his job driving a truck. In VA treatment records from 2009 and 2010 the Veteran is again noted to be retired from driving a truck. None of these medical records reflect any allegation or suggestion the Veteran's retirement was due to his headaches, or any factor other than his age. Moreover, the March 2011 VA examiner specifically noted the Veteran is retired due to eligibility by age and duration of work at the age of 62, not related to his service-connected headaches.
Based on review of the contemporaneous medical records, it appears the Veteran only began to relate his 2003 retirement to his headaches after this issue had already been on appeal for several years. Based on these facts, the Board finds the statements the Veteran made during medical treatment records shortly after retirement are more probative than subsequent statements made several years later in the course of seeking compensation. Harvey v. Brown, 6 Vet. App. 390, 394 (1994). Therefore, the contemporaneous and probative evidence does not contain any statements from the Veteran or his treating medical professionals in any way relating his retirement to his headaches. Accordingly, the probative evidence does not indicate the Veteran's headaches caused economic inadaptability, including his decision to retire.
The Board's finding that the severity of the Veteran's headaches did not result in severe economic inadaptability prior to August 2011 is not inconsistent with the remand of the unemployability claim below. While the attorney suggests the Veteran's unemployability claim has been part of his claim for an increase all along, the Board respectfully disagrees. While Rice does stand for the proposition that a claim for unemployability is a part of a claim for an increase, this applies where there is an allegation from the Veteran that his service-connected conditions render him unemployable or an indication from the evidence that this may be the case. Here, as discussed above, prior to this 2015 filing from the attorney along with a TDIU claim, the Veteran had not alleged his headaches interfered with his ability to be employed, nor had he ever suggested his retirement was due in any way to his headache disability. Rather, as discussed above, the evidence suggested his retirement was age related. It was not until the formal claim for TDIU was received in 2015 that there was any suggestion the Veteran felt he could not work because of his headaches, and this was also the first time the evidence contained any opinion suggesting this was the case. Again, the Board is focused on the proper rating prior to August 2011, as that is the sole issue remaining on appeal. None of the evidence prior to that time suggested economic inadaptability due to the headaches, and, as discussed in more detail above, the Board finds the retrospective vocational opinion is outweighed in probative value by the Veteran's own statements between 2003 and 2011 that he was retired due to age, not due to any interference from his service-connected headaches.
As discussed above, the criteria for a 50 percent rating require not only frequent and prolonged prostate attacks, but these attacks must result in severe economic inadaptability. There is no persuasive evidence indicating that the Veteran's headaches severely affected his performance in his prior occupation or resulted in an inability to adapt to the work. Therefore, the evidence does not reflect the Veteran experienced severe economic inadaptability due to his service-connected migraines at any point during the period on appeal, prior to August 16, 2011.
After fully considering the lay and medical evidence discussed above prior to August 16, 2011, the Board continues to find a 30 percent rating is the most appropriate rating for the service-connected headaches due to brain concussion, but no higher. The evidence shows that, prior to August 16, 2011, the service-connected headaches due to brain concussion more closely approximated a manifestation of prostrating attacks occurring on an average once a month, but not productive of severe economic inadaptability. See Layno, 6 Vet, App. at 470.
The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 59, 594 (1991). However, after careful review of the available diagnostic codes, and consideration of the lay and medical evidence of record, the Board finds there are no other diagnostic codes that provide a basis to assign an initial evaluation higher than the 30 percent currently assigned prior to August 16, 2011.
With regards to consideration of an extra-schedular rating, the Board finds that the schedular rating criteria adequately contemplate and describe the symptoms and impairment caused by the service-connected headaches, to include pain, sensitivity to light, and the need to lie down in dark and quiet places. A higher evaluation of 50 percent is provided under the schedular rating criteria (Diagnostic Code 8100) for certain manifestations of the service-connected disability at issue, specifically including frequency and severity of prostrating attacks and the degree of impairment with employment (severe economic inadaptability), but the competent evidence reflects that those manifestations are not present in this case. See 38 C.F.R. § 3.321; Thun, 22 Vet. App. at 115.
Prior to August 16, 2011, the weight of the competent and more probative evidence of record demonstrates that the service-connected disability has not been manifested by very frequent completely prostrating attacks productive of severe economic inadaptability for a 50 percent rating. There is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, referral for extra-schedular consideration for the service-connected residual headaches on appeal is not required.
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the duty to notify has been satisfied by March 2006 and September 2008 letters.
Regarding the duty to assist, the evidence of record includes the Veteran's VA outpatient treatment records, private treatment records, and statements from the Veteran. In July 2007, September 2008, July 2009, March 2011, May 2011, September 2011, and April 2012, he underwent VA examinations. He was also provided an opportunity to set forth his contentions during hearings before the undersigned Veterans Law Judge in May 2013 and there was compliance with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010).
There is no indication that additional records exist, and if they did, that they would provide a basis to award a higher rating for the issue discussed above. The Veteran was given an opportunity to submit additional evidence following the Court's most recent actions, or to identify any evidence he wanted VA to obtain. Since the focus of this claim is now on the rating in effect prior to August 2011, a current VA examination would not assist in resolving the issue on appeal. Again, the Veteran has not identified any other relevant evidence.
The Board finds no further assistance to the Veteran with the development of evidence is required. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
ORDER
An initial rating in excess of 30 percent for headaches due to brain concussion prior to August 16, 2011 is denied.
REMAND
In this case, the Board finds a claim for total disability rating based on individual unemployability (TDIU) has been raised in conjunction with the appeal for an increased rating for service-connected headaches. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the evidence reflects the Veteran is no longer employed, and the claims file includes recent evidence suggesting he is unemployable as a result of his service-connected disabilities. See e.g. February 2015 private Vocational Assessment. Therefore, entitlement to TDIU is also before the Board.
VA regulations provide a TDIU rating may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the VA, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a).
In this case, the Veteran is currently assigned a 30 percent rating for his service-connected headaches, a 20 percent rating for his service-connected hearing loss, and a 10 percent rating for his service-connected tinnitus, for a combined total rating of 50 percent. 38 C.F.R. § 4.25. Therefore, he does not meet the schedular criteria for TDIU. However, 38 C.F.R. § 4.16(b) also provides that all veterans who do not meet the schedular criteria for TDIU but are otherwise unable to secure and follow substantially gainful occupation by reason of service-connected disabilities shall be referred to the Director, Compensation and Pension Service, for consideration of an extra-schedular rating of unemployability.
In this case, the Veteran reported he could no longer work at his previous employment as a truck driver due to his frequent need to pull off the road and rest due to his service-connected headaches. His contentions are supported by the report from the February 2015 private vocational assessment, which concluded the Veteran's service-connected disabilities resulted in his unemployability. Based on the evidence suggesting the Veteran is otherwise unable to secure and follow substantially gainful occupation due to his service-connected disabilities, remand for referral of extraschedular TDIU is required.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)
1. Refer the Veteran's claim to the Director, Compensation and Pension Service, for consideration of an extra-schedular TDIU award. This referral should include a full statement of the Veteran's service-connected disabilities, as well as his employment, educational, and medical histories.
2. Then, readjudicate the appeal. If the appeal remains denied provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs